Death row convict’s two final chances to escape gallows: Court of Appeal reserves judgment in both appeals

The fate of Nagaenthran a/l K Dharmalingam, who had been on death row for a large part of the last 10 years, continued to be left twisting in the wind, as the Court of Appeal reserved judgment in his two final appeals to escape the death sentence on Thursday (24 January).

The appeals involved two separate decisions by Nagaenthran’s trial judge, Justice Chan Seng Onn; one dismissing Nagaenthran’s application to be re-sentenced to life imprisonment on the ground that he was suffering from mental disorders at the time of the offence, and another dismissing a judicial review application against the Public Prosecutor’s decision not to grant Nagaenthran a certificate of substantive assistance, which would have enabled the court to sentence Nagaenthran to life imprisonment.

In November 2010, Nagaenthran was found guilty of drug trafficking and sentenced to death by Justice Chan. His appeal against conviction was dismissed by the Court of Appeal in July 2011. Subsequently, the drug laws were amended in 2013 to allow drug couriers to escape the death sentence in limited situations; if the offender had a certificate of substantive assistance from the Public Prosecutor, or was suffering from an abnormality of mind substantially impairing his mental responsibility when committing the offence. There was no doubt that Nagaenthran was merely a drug courier, as eventually ruled by Justice Chan in the re-sentencing application.

Apart from the re-sentencing and judicial review applications, Nagaenthran had also applied, together with three others, to the Court of Appeal for the death sentence to be set aside on the ground that parts of the amended drug laws, which conferred powers on the Public Prosecutor to issue certificates of substantive assistance, were unconstitutional. This was dismissed by the Court of Appeal in December 2016. Justice Chan then heard both the re-sentencing and judicial review applications one after another, which were respectively dismissed in September 2017 and May last year.

Both appeals were heard together before a five-judge panel comprising Chief Justice Sundaresh Menon, Judges of Appeal Andrew Phang and Judith Prakash, Senior Judge Chao Hick Tin and Justice Belinda Ang. Nagaenthran’s case was presented by Mr Eugene Thuraisingam, while the Prosecution’s case was presented by Deputy Chief Prosecutor cum Senior Counsel Francis Ng in the judicial review appeal, and Deputy Public Prosecutor Wong Woon Kwong in the re-sentencing appeal.

Mr Thuraisingam first argued the re-sentencing appeal, where he highlighted that the expert psychiatrists for both the Prosecution and Defence were in agreement that Nagaenthran was suffering from Attention Deficit Hyperactivity Disorder, intellectual disability and Alcohol Use Disorder, which Justice Chan gave insufficient consideration to.

He put forth the case that the combinations of these abnormalities affected Nagaenthran’s ability to understand events, judge between right and wrong and to exercise self-control when he agreed to transport drugs across the Causeway.

When queried by CJ Menon and Justice Phang as to how these abnormalities of mind “substantially impaired” Nagaenthran’s mental responsibility for the offence, Mr Thuraisingam also suggested the word “substantial” in the law to be interpreted as “not trivial or minimal”, by reference to a classical English court case on diminished mental responsibility.

Mr Wong, while not disagreeing with Mr Thuraisingam’s interpretation of the word “substantial”, pointed out that Nagaenthran had given differing accounts to the medical experts as to his intentions when he agreed to transport the drugs, and admitted to one of them that he had lied to another, in suggesting that Nagaenthran’s mental responsibility was not substantially impaired.

As for the judicial review appeal, Mr Thuraisingam relied on the affidavit of a DPP from the Prosecution’s team, where its contents suggested that the PP had only considered the information provided in 2013 by Nagaenthran, but not the information provided by Nagaenthran upon his arrest in 2009, in deciding not to grant Nagaenthran a certificate. This, he argued, amounted to a ‘non-decision’ that is invalid, either due to a failure to take into account relevant considerations or irrationality.

Mr Thuraisingam also argued that an ‘ouster clause’ among part of the amended drug laws, which apparently rendered the PP’s decision on certification immune to judicial review save for under limited grounds, was unconstitutional as it purported to take away the court’s power to review such matters, as provided under the Singapore’s constitution.

Mr Ng, in urging the court to dismiss the appeal on different grounds, submitted that in enacting the ouster clause, Parliament had intended the Public Prosecutor to be immune from judicial review. This was despite Justice Chan’s ruling that jurisdictional errors of law were also available grounds for reviewing the PP’s decision in the court below, apart from bad faith, malice and unconstitutionality.

But CJ Menon disagreed, noting that the purpose of judicial review was to examine the legality of a governmental decision, and not its merits. He also stressed that constitutional supremacy is the position in Singapore, unlike the United Kingdom which practised Parliamentary supremacy. As such, given the judical power vested in the courts under the Constitution, the courts must have the power to review decisions made by the PP on various grounds, such as irrationality.

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